Mehta Rupaben Ishwarbhai v. State of Gujarat — 1976 DIGILAW 48 (GUJ)

JUDGMENT : T.U. Mehta, J. The petitioners herein have challenged the vires of R. 8 (ii) of the Rules governing the appointment of Registrars at the Government Medical Colleges and attached teaching Hospitals of the State framed by the Government as per Resolution dated 7th August, 1975, on the ground that these provisions are ultra vires Art. 16 of the Constitution. The petitioners claim that on merits they are entitled to be appointed to the post of Registrars in the subject of Paediatrics and Surgery for the term which commenced from 1st January, 1976, if the preference contemplated by R. 8 (ii) is not taken into account on account of its invalidity. 2. The petitioners have relied mainly upon Art. 16 of the Constitution for challenging the vires of the impugned rule. However, since the enforcement of Art. 14 of the Constitution is suspended by Presidential Order dated 27th June, 1975, a preliminary objection was raised on behalf of the respondents before the learned Single Judge, on whose board the matter initially appeared for disposal. The contention which was raised on behalf of the respondents was that Art. 16 is merely a species of the genus of the right of equality contemplated by Art. 14, and since the enforcement of the right contemplated by Art. 14 is suspended by the above referred Order of the President, even the enforcement of the right under Art. 16 gets automatically suspended. For this proposition, the learned Advocate of the respondents put reliance upon the decision given by a Full Bench of Assam High Court in Shyam Behari Tewari v. Union of India, AIR 1963 Assam 94 (FB), wherein it was held by a majority of 2:1 that the challenge based on Art. 16 cannot be entertained in view of the suspension of challenge under Art. 14 of the Constitution by a Presidential Order. The petitioners, however, relied upon a decision given by a single Judge of Rajasthan High Court in Arjun Singh v. State of Rajasthan, AIR 1975 Raj 217 , wherein a contrary view is taken. In view of these conflicting decisions, the learned Single Judge has thought it proper to refer the entire matter to a larger bench. This is how this matter comes up before us for disposal. 3. In view of these conflicting decisions, the learned Single Judge has thought it proper to refer the entire matter to a larger bench. This is how this matter comes up before us for disposal. 3. Before dealing with the question whether remedy under Art. 16 is automatically suspended on account of the suspension of the remedy under Art. 14 as per the Presidential Order dated 27th June, 1975, it would be necessary to state some facts forming the background of this petition. 4. The petitioner No. l has passed her M.B.B.S. examination from the Saurashtra University in the month of October, 1972 and the petitioners Nos. 2 arid 3 have passed their M.B.B.S. examinations from South Gujarat University in the month of October, 1973. After passing, these examinations all the three petitioners have got admission in Post-Graduate course at B. J. Medical College, Ahmedabad and have also served as Housemen for a period of one year. The subject of the petitioners Nos. 1 and 3 is Paediatrics, and of the second petitioner, it is General Surgery. The petitioners claim that on merits, they are the fittest candidates for being recruited to the post of Registrars. However, their grievance is that according to R. 8 (ii), preference for being eligible to be appointed to the post of Registrars shall be given to those who have passed the M.B.B.S. examination only from the B. J. Medical College and, therefore, in spite of the fact that they are the best fitted to be recruited as Registrars, they would not be so recruited as they have passed their M.B.B.S. examinations from other Colleges as mentioned above. 5. Rules governing the appointment of' Registrars at Government Medical Colleges attached to Teaching Hospitals are framed by the Government of Gujarat in Panchayat and Health Department, by resolution dated 7th August, 1975. By this resolution, previous resolution dated 1-6-74 and 22-5-75 have been superseded. The rules show that the posts of Registrar shall be advertised twice in a year in September and March and applications for the same are required to be invited in prescribed forms. According to R. 4, the selection of the persons, who are to be recruited for the post, is required to be made by the College Council constituted by the Government at respective Medical Colleges for this purpose. According to R. 4, the selection of the persons, who are to be recruited for the post, is required to be made by the College Council constituted by the Government at respective Medical Colleges for this purpose. Appointments would, thereafter, be made by the Dean of the College concerned subject to the approval of the Director of Education and Research. The tenure of the appointment is to be for 2 years but the initial appointment is required to be made on probation for a period of one year and if at the end of one year, the work and conduct of the candidate is found satisfactory, the appointment is required to be continued for a further period of one year. The candidate is required to be registered under Gujarat Medical Council Act, 1967. 6. Rule 8, which is the subject-matter of controversy in this petition is in the following terms: "8. The following candidates shall be eligible for appointment to the post of Registrar: (i) The candidates who have obtained the degree of M.B.B.S. and have done the Housemanship for one year in the subject in which they have applied or at least 6 months in the same subject and the remaining period in an allied subject. This must have been done at the same institution where they seek the Registrar's post to the satisfaction of the Superintendent of the Hospital concerned. (ii) Those who have passed M.B.B.S. degree examination from other Medical Colleges from Gujarat State which have no post graduation facilities in any particular subject. However, preference will be given to those who have passed the said examination from the same Medical College. (iii) Registrarship in super specialities wherein there is no separate Post-Graduate degree or diploma, will be given to Post-Graduate students of the concerned main branch. (iv) Those who claim Registrarship in the super speciality must have done one year's housepost in the main branch. Other things being equal, preference shall be given to those who have done six months' housepost in the speciality concerned. Foot note : Doing Supernumerary house post does not entitle to persons to claim as institutional candidate." On the face of it, the rule shows the qualifications of eligibility for appointment to the post of Registrar. So far as this petition is concerned, cls. (i) and (ii) of this Rule are the only relevant clauses. Foot note : Doing Supernumerary house post does not entitle to persons to claim as institutional candidate." On the face of it, the rule shows the qualifications of eligibility for appointment to the post of Registrar. So far as this petition is concerned, cls. (i) and (ii) of this Rule are the only relevant clauses. The learned Advocates of both the sides have contended that the requirements of both clauses are cumulative in character and therefore, the candidate who claims to be eligible for the appointment to the post of Registrar should have done housemanship for one year as contemplated by cl. (i) and should also qualify himself for eligibility under cl. (ii). Rule 15 describes the duties which the Registrars are expected to perform. These duties include teaching duties and duties in rural area, medical camps, and other emergency work as need arises. 7. Rule 16 provides for the selection of the candidates for the appointment to the post, out of the list of eligible candidates. It says that the selection should be made subject-wise on the basis of the marks obtained in the subject concerned. This rule is replaced by new R. 16 by the Government Resolution dated 3rd January, 1976. It reads as under: "16. The selection of the candidate for appointment to the post of Registrar shall be made subject wise on the basis of the marks obtained in the subjects concerned i. e. Medicine, Surgery and Obstetric and Gynaecology. The order of preference in selection will be based on the merit list prepared as per the categories given below that order: (a) First group of those who have passed the final M.B.B.S. examination in all the subjects at the first attempt will be listed mark wise in the subject concerned. (b) Second group of those who have passed the whole examination at second attempt but passed in the subject at the first attempt will be listed mark wise on the subjects concerned. (c) Third group of those who have passed the whole examination as well as the subject in the second attempt will be listed mark wise in the subjects concerned. (d) Fourth group of those who have passed the whole examination in the third attempts but passed the subject in the first attempt will be listed mark wise in the subject concerned. (d) Fourth group of those who have passed the whole examination in the third attempts but passed the subject in the first attempt will be listed mark wise in the subject concerned. Foot Note: If in the same category the marks obtained in the subject by two or more candidates are equal, the selection will be decided on the basis of total marks obtained in the whole examination. In the event of tie in the total marks also, the selection will be on the basis of the total marks obtained at the list and 2nd M.B.B.S. examination "(taken together)." 8. Other Rules are not material for our purpose and, therefore, we don't propose to refer to them. 9. Now, the contention of the petitioners is that cl. (ii) of R. 8 provides for a preference to be given to those who have passed the M.B.B.S examination from the Medical College at which the Registrarship is sought. According to the petitioners, this preference clause discriminates between the persons belonging to the same class, and does not further the object of selection which is the selection of the best person on merit. On its plain reading cl. (ii) of R. 8 shows that those candidates who have passed M.B.B.S. degree examination from the Colleges other than the College in which the appointment for the post of Registrar is sought, would be left over, in spite of the fact that on merits they are entitled to be selected, provided a candidate, who has passed M.B.B.S. degree examination from the same College is available. Thus, according to the petitioners this preference clause gives a sort of reservation to the medical graduates of the College in which the appointment on the post of Registrar is sought by a candidate in spite of the fact that that candidate is otherwise better qualified: to be appointed as a Registrar on merits. The petitioners, therefore, contend that such a provision offends Art. 16 of the Constitution inasmuch as the doctrine of equality of opportunity in matters of public employment is directly infringed. 10. In reply to this contention of the petitioners Shri Shelat, who appears on behalf of the respondents, has contended that it is not open to the petitioners to throw any challenge to cl. 10. In reply to this contention of the petitioners Shri Shelat, who appears on behalf of the respondents, has contended that it is not open to the petitioners to throw any challenge to cl. (ii) of R. 8 on the ground of infringement of the equality clause enshrined in Art. 16, in view of the fact that the Presidential Order promulgated under Art. 359 of the Constitution on 27th June, 1975 has suspended the operation of Art. 14 of the Constitution. Shri Shelat has also tried to save the vires of cl. (ii) by contending that, in effect, it does not contravene any of the provisions of Art. 16 of the Constitution, even if it is held that the said article is operative, as its operation is not expressly suspended by the above referred Presidential Order. 11. Obviously, the first question, which arises for our consideration is whether the operation of Art. 16 of the Constitution stands impliedly suspended by the above referred Presidential notification or not. The said Presidential notification is in the following terms: "In exercise of the powers conferred by cl. (1) of Art. 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any Court for the enforcement of the rights conferred by Art. 14, Art. 21 and Art. 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above-mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under cl. (1) of Art. 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force. The order shall extend to the whole of the territory of India. This Order shall be in addition to and not in derogation of, any Order made before the date of this Order under cl. (1) of Art. 359 of the Constitution." It is apparent from this Order that the President has not preferred to make any express and specific reference to the suspension of the operation of Art. 16 of the Constitution. However, the contention, raised on behalf of the respondents is that since Art. 14 is the genus of which Art. 16 is merely a species, it should follow, by necessary implication that on the suspension of the operation of Art. 14, even the operation of Art. 16 is suspended. 12. However, the contention, raised on behalf of the respondents is that since Art. 14 is the genus of which Art. 16 is merely a species, it should follow, by necessary implication that on the suspension of the operation of Art. 14, even the operation of Art. 16 is suspended. 12. Before taking up this controversial point for our consideration, on merits., it would be proper to note the different judicial opinions on this question as expressed by a Full Bench of Assam High Court in Shyam Behari Tewari v. Union, of India, (AIR 1963 Assam 94) (FB) (supra) and by a Single Judge of Rajasthan High Court in Arjun Singh v. State of Rajasthan ( AIR 1975 Raj 217 ) (supra). 13. In the writ petition, which was filed before the Assam High Court under Art. 226 of the Constitution, during the pendency of the declaration of emergency made by the President under Art. 352, the petitioners challenged the constitutional validity of R. 149 of the Indian Railway Establishment Code. Vol. I. However, in view of the provisions contained in the Order made under Art. 359 of the Constitution by the President, which inter alia, suspended the right of a person to move any Court for the enforcement of the right conferred by Art. 14, the counsel for the petitioner made a statement that he did not wish to challenge the validity of R. 149 on the ground that it violated Art. 14, but the counsel challenged the validity of the rule on the ground that it violated Art. 16 of the Constitution. Chief Justice Mehrotra and Justice Dutta, held on this point that the fundamental right guaranteed by Art. 14 was a general right of which the right conferred under Art. 16 was a species and therefore the petitioner, in view of his statement, was not entitled to contend that R. 149 violated Art. 16 of the Constitution. This decision was subsequently cited before the Rajasthan High Court in Arjun Singh's case ( AIR 1975 Raj 217 ) on the same point. J. Gupta. J. of that High Court took a contrary view after considering the relevant provisions of the Constitution and the case law, and distinguished the decision given by the Assam High Court in the above referred case of Shyam Tiwari (AIR 1963 Assam 94) (FB) on the ground that the observations contained therein were obiter. J. Gupta. J. of that High Court took a contrary view after considering the relevant provisions of the Constitution and the case law, and distinguished the decision given by the Assam High Court in the above referred case of Shyam Tiwari (AIR 1963 Assam 94) (FB) on the ground that the observations contained therein were obiter. After referring to the provisions contained in Art. 359, Rajasthan High Court has held that the Presidential Order does not have the effect of barring proceedings in respect of or suspending the enforcement of the rights conferred by Art. 16, and matters in which relief is sought strictly on the basis of rights conferred by Art. 16 could be entertained and continued to be heard by the High Court, unless an order is issued by the President of India under Art. 359 (1) of the Constitution specifically in respect of the rights conferred by Art. 16 of the Constitution. 14. It is no doubt true that the Supreme Court has observed in several cases that the equality clause enshrined in Art. 14 of the Constitution is the genus and Arts. 15 and 16 are the species of the same genus. But in none of its decisions, the Supreme Court has held that the suspension of the enforcement of right contemplated by Art. 14 by a Presidential Order issued under Art. 359 of the Constitution automatically suspends the enforcement of the rights conferred by Art. 15 or Art. 16 by necessary implication. The question is, therefore, res integra, and has to be decided by reference to the Constitutional Scheme as regards the equality clauses of Part III of the Constitution, as well as the provisions contained in Art. 359 of the Constitution under which the President is expected to pass the order suspending the enforcement of certain specific rights. 15. While considering the scheme of the equality clauses found in Part III of the Constitution, it should be noted that Indian Constitution is as much a social document as it is a political one, because, many of its provisions are directly aimed at furthering the goals of social revolution, while some of them attempt to foster this revolution by establishing the conditions necessary for its achievement. 16. Chapters on directive principles and fundamental rights bear an eloquent testimony to this. 16. Chapters on directive principles and fundamental rights bear an eloquent testimony to this. Part III of the Constitution, which deals with Fundamental Rights, refers first to a group of Articles which deals with Right to Equality. They are Arts. 14 to 18. The Preamble to the Constitution promises, inter alia, "equality of status and of liberty" to all citizens. This ideal of equality is translated in Arts. 14 to 18 which take within their compass not only the genus of political and social equality contemplated by Art. 14, but. also different species of this genus which deserve special attention and treatment having regard to the prevailing political and social conditions of the country. The idea behind making specific provisions for these different species was to focus special attention to a particular social or political problem and to attain our objectives regarding this problem by recognising that particular right and giving it a fundamental status. This was found necessary, because, the framers of the Constitution thought that a general provision for safeguarding equality as found in Art. 14 was not enough, and that special socio-political problems, with which the nation was faced, required, special attention and treatment. As rightly observed by Iyer, J. in State of Kerala v. N. M. Thomas, AIR 1976 SC 490 : (1976 Lab IC 395) : "It is platitudinous, constitutional law that Arts. 14 to 16 are a common code of guaranteed equality the first laying down the broad doctrine, the other two applying it to sensitive areas historically important and politically polemical is a climate of communalism and jobbery." It follows, therefore, that as Arts. 15 to 18 contain particular applications of the general doctrine of equality recognised by Art. 14, each one of them operates in its own special field and tries to solve its own specific problem. Though they are illustrations of the general doctrine of equality recognised by Art. 14, they have their 0wn independent existence and continue to operate in their specific field even though the enforcement of the generality of the doctrine as embodied in Art. 14 is suspended for a while. It is well settled doctrine of interpretation that a special provision of law always prevails upon a general one. It is well settled doctrine of interpretation that a special provision of law always prevails upon a general one. In the words of Romilly, M. R. in Pretty v. Solly, (1859-53 ER 1032): "The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply." The Supreme Court has approved of this principle in J. K. C. S. & W. Mills v. State of U.P., AIR 1961 SC 1170 in the following words (at p. 1174) : "The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect." 17. In view of this decision, it is difficult to comprehend how the suspension of a general provision would automatically suspend a special provision which is made to cover some special problems. If we find that each of the Arts. 14 to 18 operates independently of the other in its own special field, the suspension of the remedy under any one of them, would have no effect whatever on the remedy under the other. 18. This aspect of the matter will be still clearer if we scrutinise the manner and the field in which these Articles operate. One important point of distinction between Art.14, which contains general provision as regards the doctrine of equality, and Arts.15 to 18, which contain provisions as regards the application of this doctrine to specific situations, is that while Art. 14 seeks to protect every "person" from arbitrary and prejudicial action of the State, Arts. 15 (2) and 17 are designed to protect every "citizen" 'against the action of private individuals. Another point of distinction is that while Art. 14 gives protection to every "person", Arts. 15 and 16 protect only "citizens." Article 18 puts curbs on State, citizens as well as persons. 15 (2) and 17 are designed to protect every "citizen" 'against the action of private individuals. Another point of distinction is that while Art. 14 gives protection to every "person", Arts. 15 and 16 protect only "citizens." Article 18 puts curbs on State, citizens as well as persons. Further though all these articles have mixed socio-political contents, the main content of Art. 14 is political, while the main content of Arts. 15 to 18 is social. 19. It is equally important to note that though Art. 14 is absolute in its terms in directing the State not to deny to any person equality before law, the judicial gloss put to this Article says that it does not forbid reasonable classification and giving of a different treatment to persons belonging to different classes. In view of this judicial gloss, but for Arts. 15 and 16 it might have been possible for the State to accept religion, race, caste, sex and place of birth as furnishing ligitimate basis for classification under Art. 14. However, Arts. 15 and 16 step in and provide that there shall not be discrimination by making a classification which is based only on the ground of religion, race, caste, sex or place of birth. Thus while Art. 14 admits of classifications Articles 15 and 16 prohibit classifications of certain types. 20. In Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 , Patanjali Shastri C. J. has pointed out yet another difference in the working of Article 14 on one hand, and Articles 15 and 16 on the other. There he has distinguished the concept of "discrimination" involved in Arts. 14, 15 and 16 in the following words (at pp. 125, 126): "...Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Arts. 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those Articles. But the position under Art. 14 is different. Equal protection claims under that Article are examined with the presumption that the State action is reasonable and justified." 21. But the position under Art. 14 is different. Equal protection claims under that Article are examined with the presumption that the State action is reasonable and justified." 21. This analysis highlights the special importance of each of these Articles and focuses the necessity of the independent existence of each in absence of the other. Let us, therefore, consider how drastic and absurd results would follow, if once it is held that the suspension of remedies under the general Art. 14 would result in automatic suspension of the remedies under specific Articles 15 to 18. 22. Reference to the provisions contained in Art. 15 shows that sub-Art. (1) thereof makes prohibition against the State actions, but sub-Art. (2) thereof creates prohibitions against "every person" who desires to put restriction or condition with regard to access to shops and other public places only on the ground of religion, race, caste, sex or place or birth. Now what would happen if operation of this Article is presumed to have been suspended by a Presidential notification issued under Art. 359 of the Constitution, which makes reference to the suspension of remedies only under Art. 14. The result would be that during the existence of the Presidential notification, and for that matter during the 'existence of Emergency, even the private individuals would be at liberty to make discrimination as regards access to public places such as shops, stores and restaurants solely on the ground of religion, race, caste and sex. This would obviously cut at the root of our cherished values enshrined in the Preamble as well as in Parts III and IV of the Constitution. Even the operation of Art. 17 would stand suspended and untouchability, with all its ugly features, would make its appearance in many walks of national life. 23. In this case, we are concerned with Art. 16 and, therefore, let us consider, what would be the situation if this Article is presumed to have been suspended even though the Presidential Order does not make any specific reference to it. 23. In this case, we are concerned with Art. 16 and, therefore, let us consider, what would be the situation if this Article is presumed to have been suspended even though the Presidential Order does not make any specific reference to it. If the view taken by the Assam High Court in the case of Shyam Behari (AIR 1963 Assam 94) (FB) is accepted, the State can, during the Emergency, discriminate against its citizens in the matter of employment on the grounds only of religion, race, caste, sex, descent, place of birth or residence even though the President has suspended the remedies only under Art. 14. The purpose of Article 16 is beautifully stated by Iyer J. in State of J. & K. v. Triloki Nath Khosa, AIR 1974 SC 1 : (1974 Lab IC 1) in the following words (at p. 3): "The soul of Art. 16 is the promotion of the common man's capabilities, overpowering environmental adversities and &opening up full opportunities to develop in official life without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule, wriggling out of the democratic imperative of Arts. 14 and 16 by the theory of classified equality which at its worst degenerates into class domination." It is this purpose which would be lost without the President saying so in his order. If the President does not think that during emergency, the operation of Art. 16 should be suspended, then any implied suspension of that Article may result in chaos in public administration, and this, in its turn, may frustrate the very object underlying the declaration of emergency, because, even the emergency is required to be administered through those who man the public service. Thus, the emergency itself would be rendered a self defeating process. 24. This aspect of the matter leaves ms to the consideration of the provisions of Art. 359 under which the President is enabled to suspend the enforcement of rights conferred by Part III of the Constitution. Thus, the emergency itself would be rendered a self defeating process. 24. This aspect of the matter leaves ms to the consideration of the provisions of Art. 359 under which the President is enabled to suspend the enforcement of rights conferred by Part III of the Constitution. Sub-Art. (1) of this-Article, which is relevant for our purpose, is as under: "(1) Where a proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order." A bare reading of this part of the Article shows that the enforcement of only those rights is suspended which are "mentioned" in the Presidential Order. The use of the words "such of the rights" and the word "mentioned" indicates a specific and express mention as distinguished from an implied reference. This stands to reason, because, it is only the President, who can choose the rights the suspension of which is found necessary for tiding over the period of emergency successfully. It is the President, who is in possession of the facts and materials relating to the emergent situation. He has, therefore, to take a decision as to which rights should continue to operate, and which should not. When the President takes his decision and issues necessary orders, the terms of that order should be strictly construed from its plain language, and there is no question of any implied intendment. Apart from the fact that any such reading of implied intendment may frustrate, the very object of the emergency, it should not be forgotten that the rights, which are very fundamental to the structure of a Constitution cannot be abrogated or curtailed except by an express legal provision. If the question becomes a question of judicial interpretation, the courts should always be slow to accept the interpretation which deprives the citizens of the rights which are not expressly taken away. In our opinion, therefore, the Presidential Order cannot be construed as having impliedly taken away the right of the petitioners to claim, equality in the matter of public employment. In our opinion, therefore, the Presidential Order cannot be construed as having impliedly taken away the right of the petitioners to claim, equality in the matter of public employment. 25. For these reasons, we accept the view taken by the Rajasthan High Court in preference to the obiter of the Full Bench of Assam High Court. 26. This takes us to the merits of the contentions raised by the petitioners with regard to the vires of cl. (ii) of rule 8. 27. As already noted by us, rule 8 provides for the eligibility of candidates for the post of a Registrar. Cl. (ii) makes the Medical graduates, who have passed their degree examination from other Colleges of Gujarat eligible, but preference clause further provides that even on the question of eligibility, preference should be given to those, who have passed the degree examination from the same college in which the appointment to the post of a Registrar is sought. The question is whether the provision of such a preference infringes the doctrine of equality in public employment. 28. We have already noticed that the appointment to the post of a Registrar is made after the candidate concerned has got admission in the post Graduate course in that very college, and after he has satisfied the requirement of doing housemanship for one year as contemplated by cl. (i) of rule 8. This shows that the person, who is eligible for the post of a Registrar, is a student of that very college reading for the Post-graduate course. He is also a person who has done housemanship in that very college for a period of one year. Under these circumstances, he stands on the same footing as other students doing Post-graduate course in that very college. In spite of this, the preference clause above referred to, makes a particular candidate ineligible for the post of Registrar merely because he has passed his degree examination from some other College. Now further examination of this situation shows that passing of degree examination from other College is purely a fortuitous circumstance which can have no relevance for the purpose of appointment to the post of Registrar. Our attention is drawn to the rules regarding admission to the Pre-medical course before degree examination is begun. Rule 5 of these Rules is in the following terms: "5. Our attention is drawn to the rules regarding admission to the Pre-medical course before degree examination is begun. Rule 5 of these Rules is in the following terms: "5. The unreserved seats at the Premedical course will be pooled together and allotted to the respective University viz. Gujarat University, Saurashtra University and South Gujarat University on pro rata basis i.e. in proportion to the actual number of students passing the Pre-University Science examination held in October, 1973 and those appearing at the said examination held in May, 1974. For this purpose merit lists will be prepared University wise and admission for each University regulated accordingly. While fixing the quota of seats for the students of Gujarat University the unreserved seats available at Smt. N. E. L. Municipal College, Ahmedabad, will be taken into consideration." This rule shows that all the unreserved seats at the Pre-medical course are required to be pooled together and allotted to the different Universities working in this State on pro rata basis. According to this Rule, therefore, a student wishing to get admission in the Medical course of Pre-graduation period, has no final choice to select his College. He has, therefore, to get his graduation from the college to which he is allotted for the degree course. Under these circumstances, the fact that a particular candidate for the post of Registrarship has taken his degree examination from some different, college, becomes purely a fortuitous circumstance over which he had no control in the past. Apart from this, it should be noted that it is an admitted position that all the Medical Colleges in the state are Government Colleges where the same course is prescribed. The candidates who have passed degree examination are ordinarily registered under Gujarat Medical Council Act, 1967. These facts, therefore, conclusively show that all the Medical graduates in the State have equal qualifications, have studied the same course and are enjoying the same status as Medical graduates. After obtaining the degree, they seek admission to post-graduate course in different colleges. There they put up work as housemen for a limited period as prescribed by the Rules. Therefore, when they are given admission in Post-graduate course in a particular college, they become fused with all the other Post-graduate students in that College and form with them one and the same class. There they put up work as housemen for a limited period as prescribed by the Rules. Therefore, when they are given admission in Post-graduate course in a particular college, they become fused with all the other Post-graduate students in that College and form with them one and the same class. If this be so, it is difficult to understand on what rational principle a post-graduate student belonging to one college can he differentiated in treatment from another Postgraduate student, who did not happen to pass his degree examination from the same College. 29. Article 16 of the Constitution does not do away with a classification which is reasonable. But like Art. 14 it does insist on some rational nexus of this classification with the object of the rule. It is. therefore, necessary to see what is the object of the Rules, which provide for appointment to the post of a Registrar in a particular College. We have already quoted above the provisions of rule 16 which provides for the selection of a candidate for the appointment to a post of a Registrar. These provisions show very clearly that the selection is to be made purely on the basis of merits. The different groupings suggested in cls. (a), (b), (c) and (d) of rule 16 clearly bear out this aspect of the matter. Rule 15 prescribes the duties and functions of the selected candidates. These duties and functions also show that the selection of a candidate on the post of a Registrar must be the selection of the person, who is found best on merits. These rules therefore, show beyond any doubt that the selection is on the principle of best availability on merits, and this is the object of the Rules as regards the recruitment of Registrars. If this be the 'object of these Rules, the question is whether the classification, which is based on a fortuitous circumstances, such as passing of degree examination from a particular College can supply any rational nexus with the object. Our answer to this question is in the negative. 30. Let us see how, if the preference rule is maintained, it would operate in practice. Suppose a student, who has taken his degree examination from B. J. Medical College, Ahmedabad with higher first class marks, gets admission in Post-graduate course in the Medical College at Surat. Our answer to this question is in the negative. 30. Let us see how, if the preference rule is maintained, it would operate in practice. Suppose a student, who has taken his degree examination from B. J. Medical College, Ahmedabad with higher first class marks, gets admission in Post-graduate course in the Medical College at Surat. This candidate would naturally stand the chance of losing the post of a Registrar at Surat College simply because the preference clause excludes him from the eligibility test, if other students, who have obtained less marks in the degree examination but who have passed from Surat College in degree examination, are available and are sufficient to fill the vacant Posts. This would obviously result in preference of a person who is second rated on merits. The same eventuality would occur if a student who has passed medical degree examination from Surat College, gets admission in the Post-graduate course at B. J. Medical College at Ahmedabad and wants to get himself appointed to the post of a Registrar at B. J. Medical College. Thus, at both the ends only second rate students would happen to be preferred to the first rate student. This would obviously frustrate the very object of the rule, which is the selection of the best available candidate on merits. 31. It is by now well settled that when the recruits from different sources are fused into a common system of service, they cannot, after this fusion be treated differently by reference to the consideration that they were recruited from different sources. In the words of Chandrachud J. in State of J. & K. v. Triloki Nath Khosa (1974 Lab IC 1) (SC) (supra) "their genetic blemishes disappear once they are integrated into a common class, and cannot be revived so as to make equals unequals once again". 32. Shri Shelat, who appeared for the respondents, contended that the preference, which is contemplated by cl. (ii) of rule 8, has rational nexus with the object of this rule because that preference is contemplated to be given only to those candidates who have got past experience in the college in which they seek the post of Registrarship. 32. Shri Shelat, who appeared for the respondents, contended that the preference, which is contemplated by cl. (ii) of rule 8, has rational nexus with the object of this rule because that preference is contemplated to be given only to those candidates who have got past experience in the college in which they seek the post of Registrarship. According to Shri Shelat such candidates are more accustomed to the environment of the hospital concerned and are also known sufficiently to be the members of the staff and therefore, they are expected to discharge their duties more efficiently. He, therefore, contended that this classification as between the students who belong to the college from Pre-graduation days and others who do not so belong, should be treated as reasonable and rational. We find ourselves unable to agree with these contentions of Shri Shelat. The argument on the basis of informal experience was raised before this court in Dr. B. M. Rana v. Ahmedabad Municipal Corporation (1975) 16 Guj LR 1039. Thakkar, J. has held in that case that criteria as regards experience at one of the Municipal hospitals was irrelevant and that it cannot become the sole test for the purpose of excluding those who are better on merits. We find that this test of searching into the educational ancestry of a candidate for the purpose of recruitment to the post of Registrarship has absolutely no nexus with the object with which Rule 8 and other Rules of recruitment are framed by the Government. 33. In this view of the matter, we have no hesitation in concluding that the preference clause, namely, that "preference will be given to those who have passed the said examination from the same medical college" appearing in cl. (ii) of R. 8 infringes the equality clause contained in Art. 16 of the Constitution and, is therefore, ultra vires and illegal. This clause is obviously severable from the rest of the sub-cl. (ii) of Rule 8, and is, therefore, struck down. The respondents are directed not to act upon this preference clause, and restrained from making any recruitment to the post of Registrar on the basis of this preference clause. It is further directed that the petitioners were eligible for recruitment to the post of Registrars in B. J. Medical College on the date on which the recruitments were sought to be made in the current year. It is further directed that the petitioners were eligible for recruitment to the post of Registrars in B. J. Medical College on the date on which the recruitments were sought to be made in the current year. The respondents are, therefore, directed to make proper recruitments accordingly within a period of 6 weeks from now. If the petitioners are eventually selected as per the provisions of Rule 16, they shall be deemed to have been selected on the date on which the recruitment for the current year is made, and shall be given all the benefits under the Rules accordingly. 34. This writ petition is accordingly allowed with costs and the rule is accordingly made absolute. Rule made absolute.